graves or causes it to be engraved. A person procuring a drawing to be made, is not entitled to the protection of the statutes.' The manner in which the assignee of a print or engraving, in England, becomes entitled to protection, has been pointed out in a former chapter. Maps, charts and plans, and musical compositions, are, by the 5 and 6 Vict. c. 45, § 2, placed upon the same footing as "books," and therefore the title derived from authorship in such productions is to be regulated by the same rules as in the case of books.3 The protection of sculpture, in England, depends upon the provisions of the 54 George III. c. 56, which vests a copyright in the person who has made or caused to be made the new and original sculpture, model, copy or cast, of the subjects therein recited.* In the United States, there can be no copyright of a book, map, chart, or musical composition, print, cut or engraving, unless the author be a citizen of the United States, or resident therein, at least at the time of publication. Whether it is necessary that the work should have been made or composed in the United States, or while the author was a citizen of, or resident in the country, does not present a question of much doubt. The provisions of the statute are these: 'Any person or persons, being a citizen or citizens Jeffreys v. Baldwin, Ambl. 164. Godson on Patents and Copyright, 403-404. Ante, page 112. of the United States, or resident therein, who shall be the author or authors of any book or books, map, chart, or musical composition, which may be now made or composed, and not printed and published, or shall be hereafter made or composed, or who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own design, any print or engraving, and the executors, administrators, or legal assigns of such person or persons shall have the sole right and liberty of printing, reprinting, publishing and vending such book or books, &c., in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed." It would seem, upon this statute, that at the time of recording the title, whether by the author or by his assignee, the author must be a citizen of the United States, or resident therein. What constitutes such residence as is here contemplated, may present a question of some difficulty. Does the statute mean that the party shall have come to reside animo remanendi, and that if he has so come, he may take a copyright before he can become a citizen of the United States? Or does it mean, that he shall have come, not only with the intention of remaining, but also with the intention of becoming a citizen? Or, again, does it mean that he shall be temporarily resident only, so that he may take a copyright when he has 'Act of Congress, Feb. 3, 1831, § 1. come solely for the purpose of taking it? And in either case, does it mean that he must have resided, while he made or composed his work, or can a resident foreigner publish and take a copyright of a work which he has composed abroad? The intention of the act seems to have been, that the author should be a citizen of or resident in the United States, when the title is entered, because it is to such citizens or residents alone, or their assignees, that the law grants the exclusive right, which is secured by the entry. the entry. If the entry were made by an assignee, before the author had come to reside, such assignee would have the common law title of an unpublished manuscript; and the common law does not inquire whether the title to an unpublished work was derived from a citizen or a foreigner. But the statute has apparently taken away the common law right derivable from a non-resident alien, as soon as the work is published, because it declares, in effect, that the persons entitled to copyright, shall be only such authors as are citizens or residents, and their assignees; and if the assignee takes his title before the author has come to reside, he takes from a person who is not within the privilege of the statute, and has nothing to confer. The kind of residence contemplated by the act can only be gathered from its general scope and policy. The same provision has existed in all the acts of congress for the protection of authors, and the general policy of all these statutes has been the encour agement of native literature. On one side, it may be said that the statute intended to encourage all literature that should be first published in the United States, and that the industry and arts connected with the manufacture of books may also be supposed to be objects of the same policy, so that if a foreigner is actually resident at the time he prints and publishes here a work that has never been printed and published elsewhere, it is immaterial whether he came animo remanendi aut revertendi. But suppose he brings the work already printed, but not published; is there anything in the act which declares that the paper and print shall be products of American industry? It is difficult to extract from the act anything like a tariff protection to the mere arts of papermaking and printing. Literary labor and the advancement of the literature of the country, were the great objects of encouragement; and it is by no means clear that all literature, first published in the country, is not included in the scope of this policy. But the question is not free from difficulty, and remains for judicial determination.1 With regard to the place where the work may have been composed, the act is wholly silent, and it is obviously immaterial, whether it was written in or 1 The 8th section of the act declares that nothing in this act contained shall be construed to extend to prohibit the importation or vending, printing or publishing of any map, chart, book, musical composi tion, print, or engraving, written, composed, or made by any person not being a citizen of the United States, nor resident within the jurisdiction thereof. out of the country, provided the author comes within the description of persons intended by the statute to be benefited. Any other construction would equally deprive citizens of the United States of the benefit of copyright in works written abroad, though first published at home; which clearly could not have been intended. The person who is to be regarded as the author of a print or engraving, so as to be entitled to copyright, is he who has invented and designed and personally etched, engraved or worked it, or who has caused it to be engraved, etched or worked from his own design. In either case, the design must be the production of the party claiming the copyright; and an important question arises, what constitutes the design of a print, in the sense of the statute? If the party personally engraves the subject of his conception, then he is both the inventor and designer; since he has not only conceived the subject of the picture, but has represented it in a visible form. But if the engraving is made by another under his direction, it must be made from his " design;" and the question is, whether this term means only the intellectual conception, or work of the imagination, before it is reduced to some visible form, or whether it implies a drawing or other visible representation of the invention, by the hand of its author. Under the act of 29th April, 1802, ch. 36, which contained a similar provision, it was held by Mr. Justice Wash |